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November 06, 2017 Articles

Deponents Behaving Badly: Should Their Lawyers Be Sanctioned Too?

The Rules of Civil Procedure give courts the power to sanction bad conduct by a deponent. But under certain circumstances, the deponent’s attorney could also be on the hook.

By Alexandra L. Sobol

Parties entrenched in litigation are often driven by their emotions. They may lose sight of the merits of their case and instead battle with their adversaries solely for the sake of the fight. This mind-set may lead to boorish (and therefore sanctionable) behavior. Party misconduct most frequently arises during discovery, as this phase may provide litigants with the first opportunity to be heard, both literally and figuratively. At a deposition, witnesses may be purposefully evasive or even hostile, forgetting that the deposition room mirrors a courtroom.

This behavior requires counsel for the witness to get control of his or her client. Some lawyers, however, will sit idly by or, worse, encourage the client’s misconduct. An attorney’s failure to curb a client’s unruly behavior can, and should, lead to the imposition of sanctions for all those involved.

Sanctions under Rules 30 and 37
Courts turn to Federal Rules of Civil Procedure 30 and 37 when issuing sanctions for deposition misconduct. Under Rule 30, which outlines the basic requirements of a deposition, “[t]he court may impose an appropriate sanction—including the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2) (emphasis added). This rule is noticeably broad, as it references any “person” that disrupts a deposition, thereby permitting courts to sanction both parties and counsel alike.

Rule 37 permits sanctions when a party provides incomplete or inadequate disclosures. Likewise, counsel may also be sanctioned under Rule 37 for “advising” the misconduct that necessitated an adversary’s motion to compel. See Fed. R. Civ. P. 37(a)(5)(A). In the context of a deposition, Rule 37 applies when a deponent is evasive or improperly refuses to answer a question. If successful, the movant may be awarded attorney fees and costs as well as a re-deposition of the witness.

Unlike Rule 30, Rule 37 requires an elevated showing for an award of sanctions. Namely, a court will deny an award of sanctions if “the motion was filed without the movant’s first making a good faith effort to obtain the disclosure or discovery without court action”; if “the opposing party’s nondisclosure, response, or objection was substantially justified”; or if there are “other circumstances [that] make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A). Both Rule 30 and Rule 37 are often cited together in cases awarding sanctions for deposition misconduct.

Illustrative Cases
Two cases are particularly instructive on how courts handle the lawyers of unruly deponents. In Luangisa v. Interface Operations, No. 2:11-cv-00951, 2011 WL 6029880, at *11 (D. Nev. Dec. 5, 2011), the deponent, one of the named defendants in the case, refused to answer the examining attorney’s questions on the grounds that they were irrelevant to the underlying dispute. Likewise, his counsel made a host of baseless speaking objections and instructed his client not to answer certain questions that he, too, deemed irrelevant. Such conduct left the plaintiff’s counsel with no choice but “to terminate the deposition after less than 10 minutes of actual testimony.” Immediately thereafter, the plaintiff filed an emergency motion to compel a re-deposition and sought monetary sanctions against both the deponent and his counsel. Id.

Citing Rules 30 and 37, the court issued an order requiring the defendants to pay all of the plaintiff’s costs and attorney fees for both the initial and repeat deposition. Though the court awarded sanctions only against the deponent, it nevertheless had strong words for counsel regarding his improper conduct. According to the court, “[d]efense counsel made no effort to advise his client of his obligation to answer the questions which were asked.” “In fulfilling his or her duties as an officer of the court an attorney must take some affirmative step to ensure the deponent complies with the deposition rules.” Indeed, the “failure of an attorney to curb client misconduct during a deposition can have the effect, as it did here, of empowering continued misconduct.”

Unlike the attorney in Luangisa, counsel in GMAC Bank v. HTFC Corp., 248 F.R.D. 182 (E.D. Pa. 2008), was unable to escape his client’s deposition unscathed. In GMAC, the deponent was wildly offensive throughout his deposition, providing nonresponsive answers to the majority of the questions posed and repeatedly attacking and cursing at the examining attorney. At one point in the deposition, the witness responded to a question by stating, “It’s directed to you because you’re a piece of [sh-t] and a piece of garbage and I’m the only person in your life that is [f--king] up your world and I enjoy it.” In another instance, when asked to review an exhibit, the witness remarked, “Open it up and find it. I’m not your [f--king b-tch].”

Instead of taking an active role and reprimanding his client, the attorney sat silently, allowing his client’s vulgar and harassing commentary to burden the record and make a mockery of the rules. Though counsel later argued that he had attempted off the record to control his client, the court was entirely unimpressed.

In its opinion, the court noted that “[i]t is true that any attorney can be blindsided by a recalcitrant client who engages in unexpected sanctionable conduct at a deposition. An attorney faced with such a client cannot, however, simply sit back, allow the deposition to proceed, and then blame the client when the deposition process breaks down.” Finding that counsel’s failure to intervene constituted “endorsement and ratification” of his client’s conduct, the court imposed sanctions on the lawyer under Rule 30(d)(2) and Rule 37(a)(5)(A).

Attorneys play a vital role in upholding the sanctity of the judicial process. They must take their role as officers of the court seriously, regardless of whether or not a judge is present. The failure to do so may result in sanctions against not only their clients but also themselves. Likewise, judges must continue to use the rules at their disposal to ensure that unruly clients, and their attorneys, do not make a mockery of the judicial forum.

Alexandra L. Sobol – November 6, 2017